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In re Inquiry Concerning A No. 7612/6/1983
At the outset, we are faced with respondent's motion to include as a part of the record on appeal certain paperwritings previously furnished to the Judicial Standards Commission by respondent. A copy of this material, entitled "Judge Charles T. Kivett, Investigative Information, Sections I-X," comprising two volumes, has been filed with this Court. This material was submitted to the Judicial Standards Commission, pursuant to JSC Rule 7(b), on 4 January 1983, except Section X, which was submitted 27 January 1983. Rule 7(b) allows a respondent to submit relevant matters to the Commission for its consideration in determining whether a formal complaint should be issued.
The material which respondent now seeks to have made a part of the record was not introduced as evidence in the formal hearing. It was not a part of the evidence upon which the Commission based its recommendation. However, the substance of some of this material was before the Commission through other
witnesses; e.g., evidence of alleged efforts by agents of the SBI to influence the testimony of Millie Dyonia Vernon through offers to help her regain her driver's license which had been suspended. Much of this material consists of affidavits by attorneys and court personnel as to respondent's good character and reputation as a judge. Approximately twenty-three affidavits are to this effect. Three affidavits are by attorneys who represented respondent during these proceedings. Affidavits by respondent, as well as an unsigned paper, purportedly a statement by respondent, were included, along with copies of court orders and judgments. Most, if not all, of the court orders and judgments were in evidence at the formal hearing.
There is nothing in the record suggesting that these persons could not have been available to testify at the hearing. At least one such person, attorney John E. Hall, was so present but was not called by respondent to testify. Some of the material is incompetent as evidence; e.g., the unsigned paper, purportedly a statement by respondent.
If these materials are allowed to become a part of the record at this late stage of the proceedings, fairness would require that evidence be allowed to rebut them. We do not find that the tendered materials are necessary or even helpful to our decision in this proceeding. The materials were not considered by the Commission in arriving at its recommendation. Certainly, respondent is not prejudiced by the absence of the materials. Respondent's motion, made pursuant to Rule 37 of the North Carolina Rules of Appellate Procedure, is addressed to our discretion. The motion is denied.
At the call of this proceeding for oral argument, one of respondent's counsel informed the Court that respondent had, by letter dated 9 November 1983, submitted to Governor James B. Hunt, Jr., his resignation as a superior court judge. The resignation is to become effective 31 December 1983. Assuming that the resignation has been or will be accepted by the governor, it does not deprive this Court of its jurisdiction over this proceeding. In re Peoples, 296 N.C. 109, 250 S.E.2d 890 (1978), cert. denied, 442 U.S. 929 (1979). "When a resignation specifies the time at which it will take effect, the resignation is not complete until that date arrives." Id. at 145, 250 S.E.2d at 911. Nor is the case rendered moot by the resignation. Id.
We now consider whether the evidence before the Commission with reference to respondent's conduct supports the findings of fact and conclusions of law made by the Commission. After so doing, we must determine whethe
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